What the Supreme Court Should Have Said in the Proposition 8 Case, and How an Important Tweak Would Have Avoided Unnecessary Damage to the Initiative Device

It was completely understandable, justifiable and even predictable that the Supreme Court would dispose of the challenge to California’s voter-enacted ban on same-sex marriage, Proposition 8, by saying that the sponsors/proponents of the measure lacked legal “standing” to defend it in federal court, even when the State Governor and Attorney General failed to defend.  Given the rapidly changing legal landscape, any principled legal way to bypass until another day the big question of whether there is a national right to same-sex marriage was worth exploring, as I have argued, on this website and elsewhere, since 2010.

But while the standing route is attractive, it is also potentially hazardous.  In particular, the Court needed to steer clear of damaging the initiative device in general even as it denied standing to Proposition 8’s sponsors in particular.  Although some folks disparage the initiative device, it is used in about 20 states that together contain almost 150 million Americans.   Unfortunately, Chief Justice Roberts’s 5-4 majority opinion did not navigate this terrain particularly cautiously, and the integrity of direct democracy might end up being the victim.

The best argument (and it was made by Justice Kennedy’s dissent) in favor of sponsor standing is that elected officials should not be able to effectively defeat initiatives by simply not defending the measures against federal court challenge. This is especially problematic because the initiative device is derived from a concern that elected officials sometimes do not act in ways that are faithful to the people’s interests and desires. And while most initiatives are responses to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials represented by the initiative mechanism does not also carry over to officials like Governors and Attorneys General.

Yet granting sponsors the ability to represent the State raises its own problems.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

A majority of Justices felt they had to credit the latter arguments over the former, and so joined an opinion that could be read as suggesting that, no matter what a State’s law says, under no circumstances can initiative sponsors ever step into the shoes of the State.  The problem, said the majority, was that initiative sponsors are not subject to control of the voters the way regular State officials are.  That may be true to some extent when sponsors are compared to some regular officials, but it not true categorically.  Moreover, the majority’s reasoning, read broadly, could mean that nobody who isn’t on the government payroll exercising full-time government power can ever defend initiatives in federal court.  And believers in the initiative often don’t want to empower or create new bureaucracies.

The dissenters, by contrast, thought the first set of arguments should trump, and so would have empowered sponsors to defend all initiatives.  Yet the dissenters did not address the reality that some sponsors may be rogue.

But this framing of the issue ignores an appealing middle path: a state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see. In crafting a workable balance between the competing concerns presented by initiative-sponsor standing, federal courts should recognize the possibility of sponsor standing, but only when the grant of power to sponsors to defend is clearly provided for in state law, so that the voters have adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.  It would be sensible for such explicit deputization to address, among other things: (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor’s power to defend lasts; (3) the question of attorneys’ fee liability to be satisfied by public fisc if the defense fails; and (4) what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways different from the litigation strategy favored by the sponsors.

In other words, the key is not whether sponsors are controlled by voters or other state authorities; it is whether the sponsors were ever selected and given a discrete power by the voters in the first place.  (That is the correct way to distinguish an initiative sponsor from an Attorney General.)

Proposition 8’s sponsors would have failed this test, because nothing in California law in 2008 (when the measure was passed) told voters that by adopting the measure they were also picking the sponsors as their agents.  But, going forward, fans of the initiative device in California and elsewhere should be able to specifically deputize sponsors as backup representatives of the State by saying so in the text of specific initiatives (or through some similar device that puts voters on notice that adoption of the initiative creates agency in the sponsors), and thus should have the means to prevent elected officials from frustrating direct democracy simply by failing to defend measures that are challenged in federal court.  That this path wasn’t staked out by Chief Justice Roberts’s opinion is regrettable.

If the Justices in the same-sex marriage cases this year did, as a group, want to embrace a middle-of-the road outcome, they could and should have been more careful to avoid making the initiative device road kill.